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[2025] NSWLEC 1285
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-02
Byrne AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Denwol Double Bay Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1285
Hearing dates: Conciliation Conference 10 December 2024, 30 January, 17, 27 February 2025
Date of orders: 02 May 2025
Decision date: 02 May 2025
Jurisdiction: Class 1
Before: Byrne AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA410/2023/1 (as amended) for the demolition of the existing residential flat building and construction of a three-storey residential flat building at 17-19 Guilfoyle Avenue, Double Bay NSW 2028 is determined by the grant of development consent, subject to the conditions set out in Annexure A.
(3) The Applicant is to pay the Respondent’s costs thrown away of $12,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders.
Catchwords: DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15, Sch 1, s 8A
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, cl 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Housing) 2023
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2
Category: Principal judgment
Parties: Denwol Double Bay Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation: Counsel:
I Hemmings SC (Applicant)
D Havadjia (Solicitor) (Respondent)
Solicitors:
Reid & Vesely Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2024/253597
Publication restriction: No
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Woollahra Municipal Council (the Council) of DA No 10/2023/1 (the Development Application) for the demolition of the existing residential flat building and construction of a three-storey residential flat building (the Proposed Development) at 17-19 Guilfoyle avenue, Double Bay, NSW 2028, legally identified as Folio CP/SP1464 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on Site and at Council Chambers.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to cl 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.
There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions. The plans and documents that form part of the development application, as amended, are noted at the end of this judgment under ‘Notation’.
The proposed development is within the flood planning area as the Site is mapped on the Flood Planning Map Sheet.
Clause 5.21(2) of the WLEP provides that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied of the matters set out in subcll 2(a) – (e).
Further, cl 5.21(3) requires that in deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the matters in subcll (3)(a) – (d).
A table that addresses each of the matters in subcll 5.21(2) and (3) is set out in part 5.1 of the Preliminary Flood Assessment and Flood Emergency Response Plan prepared by Martens & Associates, dated 19 October 2023. On the basis of this table and report, the Court is satisfied that the considerations listed in cl 5.21 have been addressed.
Clause 2.3(2) of the WLEP requires that the consent authority have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The objectives of the R3 Zone are reproduced as follows:
To provide for the housing needs of the community within a medium density residential environment.
To provide a variety of housing types within a medium density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
To ensure development conserves and enhances tree canopy cover.
A consideration of the relevant C3 zone objectives demonstrates that the proposed development is consistent with these zone objectives.
I accept the parties’ analysis and consideration of other provisions of the WLEP such as acid sulphate soils (cl 6.1) and earthworks (cl 6.2) discussed in detail in the Statement at page 4.
The Proposed Development requires two cl 4.6 requests to justify a contravention of the Floor Space Ratio (FSR) development standard in cl 4.4A of the WLEP and a contravention of the development standard for height of buildings set out in cl 4.3 of the WLEP. The Applicant relies on an updated written request under cl 4.6 of the WLEP to vary the development standards.
Updated cl 4.6 requests were prepared by GSA Planning dated January 2025: [see detail set out in the Statement at pages 2 and 3].
The parties agree that the cl 4.6 requests are prepared with the relevant requirements under cl 4.6(3), the development will be in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 ‘Medium Density Residential’ zone, and there are adequate environmental planning grounds to support the proposition that compliance with the development standard is unreasonable and unnecessary.
The Court accepts the parties’ position and I am satisfied to make the finding that the Applicant’s written requests under cl 4.6 of the WLEP to vary the floor space ratio development standard under cl 4.4 of the WLEP and the height of buildings standard under cl 4.3 of the WLEP for the Proposed Development at 17-19 Guilfoyle Avenue, Double Bay NSW 2028, are upheld.
I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties’ Statement at pages 5, 6 and 7, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
State Environmental Planning Policy (Housing) 2023
The development application was publicly notified between 29 November 2023 and 19 January 2024 in accordance with s 8A of Sch 1 of the EPA Act. Two submissions were received and have been taken into account in the preparation of the final plans and the conditions of consent. One neighbour addressed the Court at the Site inspection. The parties have had regard to the submissions received from the resident objectors which has also informed the amendments to the development application
I am satisfied that the objectors’ reasonable concerns were considered by the parties and they were accorded procedural fairness.
For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.
As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes:
That the Respondent as the relevant consent authority has agreed, under subss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA410/2023/1 to rely on the following plans and documents:
| No | Document | Drawing No. | Prepared by | Rev | Date | | 1. | Architectural Plans | | Basement Plan | DA2000 | MHNDUnion | D | 21/1/2025 | | Ground Floor Plan | DA2001 | MHNDUnion | E | 29/1/2025 | | Level 1 Floor Plan | DA2002 | MHNDUnion | E | 29/1/2025 | | Level 2 Floor Plan | DA2003 | MHNDUnion | E | 29/1/2025 | | Roof Plan | DA2004 | MHNDUnion | D | 21/1/2025 | | Elevation North | DA3000 | MHNDUnion | D | 21/1/2025 | | Elevation South | DA3001 | MHNDUnion | D | 21/1/2025 | | Elevation East | DA3002 | MHNDUnion | D | 21/1/2025 | | Elevation West | DA3003 | MHNDUnion | D | 21/1/2025 | | Sections | DA3100 | MHNDUnion | E | 29/1/2025 | | GFA Calculations | DA9000 | MHNDUnion | E | 29/1/2025 | | Deep Soil Area Calculations | DA9002 | MHNDUnion | D | 21/1/2025 | | Height Plane Study | DA9003 | MHNDUnion | D | 21/1/2025 | | Excavation Calculation | DA9004 | MHNDUnion | D | 21/1/2025 | | Solar Access | DA9100 | MHNDUnion | D | 21/1/2025 | | Solar Access | DA9101 | MHNDUnion | D | 21/1/2025 | | Amended Swept Path Analysis | 23165 | Varga Traffic Planning Pty Ltd | RV | 21/1/2025 | | BASIX Certificate | 1422833M_05 | NSW Planning, Industry & Environment | - | 7/02/2025 | | 2. | Landscape Plans | | Ground Level | DA-2312-01-J | Sturt Noble | J | 21/01/2025 | | Level 1 & Level 2 Template | DA-2312-02-H | Sturt Noble | H | 17/12/2024 | | Planting Schedule | DA-2312-03-I | Sturt Noble | I | 17/12/2024 | | Tree Canopy Plan | DA-2312-04-F | Sturt Noble | F | 17/12/2024 | | Deep Soil Plan | DA-2312-05-F | Sturt Noble | F | 21/01/2025 | | Landscape Details | DA-2312-06-D | Sturt Noble | D | 17/10/2024 | | | Landscape Specifications & Maintenance | DA-2312-07 | Sturt Noble | D | 17/10/2024 | | 3. | Stormwater Plans | | Sediment and Erosion Control Plan | PS01-B300-D | Martens | D | 17/01/2025 | | Sediment and Erosion Control Details | PS01-B310-A | Martens | A | 11/09/2023 | | Drainage Plan | PS01-E100-D | Martens | D | 17/01/2025 | | Drainage Details | PS01-E200-B | Martens | B | 02/01/2024 | | Water Quality Catchment Plan, Model and Results | PS01-E700-C | Martens | C | 02/01/2024 | | 4. | Reports | | Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Floor Space Ratio (FSR) (Amended) | JOB NO. 21518 | GSA Planning | - | January 2025 | | Woollahra LEP 2014 Clause 4.6 Exceptions to Development Standards – Height of Building (Amended) | JOB NO. 21518 | GSA Planning | - | January 2025 | | Preliminary Geotechnical, Hydrogeological and Acid Sulfate Soil Assessment | Document No. P2309481JR03V04 | Martens & Associates Pty Ltd | - | February 2024 | | Remedial Action Plan | Document No: P2309481JR06V03, | Martens & Associates Pty Ltd | - | August 2024 | | Document No: 2024/0299 | Tree Protection Plan and Specifications | George Palmer, Botanics P/L | - | December 2024 | | Document No: N/A, | Arboricultural Impact Assessment and Management Plan | George Palmer, Botanics P/L | - | August 2024 |
The Court orders:
The appeal is upheld.
Development Application DA410/2023/1 (as amended) for the demolition of the existing residential flat building and construction of a three-storey residential flat building at 17-19 Guilfoyle Avenue, Double Bay NSW 2028 is determined by the grant of development consent, subject to the conditions set out in Annexure A.
The Applicant is to pay the Respondent’s costs thrown away of $12,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders.
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253597.2024 Annexure A
Denwol Double Bay Pty Ltd
Woollahra Municipal Council [2025] NSWLEC 1285